Ruling (Application for permission to amend the notice of appeal and adduce further evidence)

Ruling granting Hutchison 3G permission under Rule 11 of the Tribunal Rules to amend its notice of appeal.

Hutchison 3G had drafted its notice of appeal on the basis that the question of whether: the imposition of a price control on Hutchison 3G with effect from April 2007 was an appropriate and proportionate response to a finding of significant market power, or whether a remedy short of price control would be sufficient, was a specified price control matter to be referred to the Competition Commission.

The Tribunal having concluded otherwise (see the Tribunal’s ruling on the preliminary issue: CAT [2007] 27), Hutchison 3G requested permission to amend its notice of appeal and to adduce further evidence in respect of that question.

OFCOM resisted some of the proposed amendments, in part on the basis that they constituted new grounds within the meaning of Rule 11 and none of the conditions of Rule 11(3) were fulfilled, and in part (in relation to arguments relating to on-net and off-net pricing issues) because the proposed amendments would cause substantial prejudice to OFCOM and the other parties involved.

The Tribunal concluded that none of the amendments proposed by Hutchison 3G amounted to new grounds within the meaning of the Tribunal Rules, but concluded that on balance, permission to include the amendments relating to the on-net/off-net pricing issues should be refused. Otherwise, the proposed amendments were permitted. The proposed further evidence, having been amended to remove reference to the on-net/off-net pricing issue, was also permitted.

This is an unofficial summary prepared by the Registry of the Competition Appeal Tribunal.